Lieber. which legislation and decisions is not at all religious, but strictly civil. 5. The civil power cannot exercise any preference among the various churches or sects, but must hold all as having equal rights under the law, and as equally entitled to whatever protection under the law circumstances may furnish need for. 6. The civil power may not make any distinction among citizens on account of religion, unless the following thereof is dangerous to society. Neither the right to vote nor to hold office is to be invalidated because of opinions on the matter of religion. Nor, again, is a citizen's right to bear witness, or to inherit property to be called in question for reasons of religion. Thus the severance of state from Church-of the civil power from all efficient concernment for religion is made thorough to the minutest detail. As Story somewhat boldly phrases it,1 "The Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel may sit down at the common table of the National Councils without any inquisition into their faith and mode of worship." Such is the peculiar contribution of America to the formative ideas of civilization, the rise of which and its formulation in the fundamental law afford a study of great and varied interest. "Of all the differences between the Old World and the New this is perhaps the most salient."2 It is interesting to note how thoroughly it permeated the social life and institutions of the people, and how, under the influence of its beneficial ministry of a century and a quarter, it has so justified itself as to take in the mind of American jurists and publicists the form and dignity of inherent and self-evident truth. Thus writes Dr. Lieber,3 "Liberty of Conscience, or, as it 1 On The Constitution, Sec. 1880. 2 Bryce, American Commonwealth, II, 554. ought to be called more properly, the liberty of worship, is one of the primordial rights of man, and no system of liberty can be considered comprehensive, which does not include guarantees for the exercise of this right. It belongs to American liberty to separate entirely from the political government the institution which has for its object the support and diffusion of religion." In like manner, Kent declares,1 Kent. "The free exercise and enjoyment of religious profession and worship may be considered as one of the absolute rights of the individual, recognized in our American Constitution and secured by law. Civil and religious liberty generally go hand in hand, and the suppression of either of them, for any length of time, will terminate the existence of the other." With similar thought Rawle, discoursing about statutory interfer- Rawl ence with religion, says,2 "Thus a human government interposes between the Creator and His creature, intercepts the devotion of the latter, or condescends to permit it only under political regulations. From injustice so gross and impiety so manifest multitudes sought an asylum in America, and hence she ought to be the hospitable and benign receiver of every variety of religious opinion." Thus also Judge Cooley writes, Coole Nothing is more fully set forth or more plainly expressed (in the American Constitutions) than the determination of their authors to preserve and perpetuate religious liberty, and to guard against the slightest approach towards the establishment of any inequality in the civil and political rights of citizens, which shall have for its basis only their differences of religious belief. The American people came to the work of framing their fundamental laws after centuries of religious oppression and persecution-sometimes by one party or sect and sometimes by another—had taught the utter futility of all attempts to propagate religion by the rewards, penalties, or terrors of human law. They could not fail to perceive also that a union of Church and State like that which existed in 66 C 1 Commentaries,- Part 4, Sec. 24. 2 Rawle on The Constitution, p. 117. England, if not wholly impracticable in America, was certainly opposed to the spirit of our institutions, and that any domineering of one sect over another was repressing to the energies of the people, and must necessarily tend to discontent and disorder." 1 Such is the American principle of religious liberty, unique among the governmental policies of the world, the evolution of which in the colonial era it is the purpose of this present work to trace. In order to observe its spring and progress in true historical perspective, we shall do well to note some of the antecedent conditions, and to review the development and chief elements of the Old World Idea, in as brief space as the subject will permit. 1 Cooley, Constitutional Limitations, p. 371. Cf. von Holst, Constitutional History of U. S., v. 103, vi. 260. II THE OLD WORLD IDEA THAT questions as to the relation between things religious and things political have occupied large space in the history of Europe, is evident to the most casual reader. It will be difficult, indeed, to find any other question so important, so insistent for solution, so widely affecting society, and so efficient in guiding historic development. Thus, in very emphatic words, Ranke declares, "The whole life and character of Western Christendom consists of the constant action and counteraction of Church and State." From the beginning of the Christian state it was assumed that, among its first duties and missions was care for the interests of the Church or submission to its demands; and it was soon made evident that the union between the two was so intimate that, whatever became of interest to the one was matter for action by the other. In all matters of peace and war, in all arrangements of society, in all movements and policies of government, and in all popular ferments, the loudest and most imperative voice came either from this settled principle of union, or from the determined efforts to shake off its bonds. 1 This thought is expressed by Story in perhaps somewhat exaggerated language: "Half the calamities, with which the human race has been scourged, have arisen from the Union of Church and State." If the view were confined to that portion of the race which has dwelt under European institutions, we might accept the statement without great reduction of its terms. Such is the more guarded expression of Bryce:2 1 On the Constitution of United States, Sec. 622. A Christian "Half the wars of Europe, half the internal troubles that have vexed the European States, from the Monophysite controversies in the Roman Empire of the fifth century down to the Kultur Kampf in the German Empire of the nineteenth, have arisen from theological differences, or from rival claims of Church and State." To thoroughly understand, then, the character of the unique development of the American principle of entire separation, and to appreciate the gravity of the revolution thereby introduced, the student must hold in mind the more salient features of the European principle and its development. At the outset, also, it must be noted that the study is necessarily confined almost entirely to western Christendom. The eastern Church, resigned to the protection of the empire, sank into dependence and subsequent decadence, alien to those movements of thought and purpose out of which struggle and advancement come. It was content to be the servant and creature of the state. Quite diversely, the western Church, cast on its own resources of courage, faith, and resolution by the destruction of the em pire, grew increasingly virile and ambitious as the centuries advanced. The sole saviour of society in the midst of the chaos of empire, it found itself guide and arbiter in countless matters other than those which concerned faith and worship. It is not strange that its ambition, thus nurtured, should reach to the complete mastership over kings, governments, and people. Nor is it strange that, with the resettlement of society and the growing consciousness of national life, there should arise struggle and revolt against an exacting ecclesiasticism -a revolt to which the Renaissance of art and letters, with its logical consequent of the Reformation, added both strength and variety. From the nature of the case the problem of Church and State is entirely Christian. It could arise only within the pale of a Christian society, more or less civilized and advanced. T the Hebrew cultus it was unknown, and its propositions would |
